McGarvey (a minor) v Barr
High Court
Neutral citation (2011) IEHC 461. Judgment was delivered on December 21st, 2011, by Mr Justice Iarfhlaith O’Neill.
Judgment
The family doctor of a 78-year- old man, who suffered from high blood pressure and was involved in a fatal car crash, was not liable for the incident for issuing the man with a certificate that he was fit to drive and not advising him not to drive.
Background
On May 27th, 2008, a car driven by William Barr, the defendant, travelled through the village of Dunlewey, Co Donegal. It crossed from its side of the road at a bend to hit a car driven by Sonia McGarvey, coming in the opposite direction.
The McGarvey car went off the road, down an embankment and went on fire. Its driver was seriously injured and her four-year-old daughter, who is the plaintiff in the proceedings, was very seriously injured as a result of which she is permanently disabled. Mr Barr’s wife, a front-seat passenger in his car, was killed.
In the subsequent legal proceedings, Mr Barr pleaded he was not liable for any injuries suffered by the child plaintiff as the incident was caused by a medical ailment which led him to lose control of his vehicle.
He joined a third party, Dr Anthony Delap, who had been his GP for many years, to the proceedings.
The claim was two-fold: that the doctor should not have issued a certificate in 2006 that Mr Barr was fit to drive for a period of three years and that he was negligent for failing to advise him to stop driving at various stages between July 2006 and the date of the accident in May 2008.
Evidence was given by a man who was driving immediately behind the defendant and came upon the scene that Mr Barr was driving carefully until he came to the bend in the road, when he drove straight into the path of the other car. This man found Mr Barr to be conscious but dazed after the crash.
The fireman who arrived at the scene about half an hour after the accident reported that he was conscious and coherent but confused. He could not state his age, but did state his date of birth and was able to undo his wife’s seatbelt when asked to do so.
He had been keeping a meticulous record of his blood pressure since 2006 and was on medication for high blood pressure. In the days leading up the crash, the record showed his blood pressure was at an acceptable and predictable level for a person on a beta blocker.
On April 8th he had visited his GP, Dr Delap, and spoken of what was recorded in the notes as “fainting spells”. However, his actual complaint, which was explained in Irish, the language they normally used, was of a feeling of “queasiness” or lightheadedness, which occurred in the evening.
Decision
Mr Justice O’Neill said that given the history leading up to the crash, it was difficult to see a convincing explanation for precisely what happened. If a very sudden loss of consciousness occurred, it would have been of a kind only caused by catastrophic cardiovascular events. It was clear from the evidence that nothing of this nature happened.
According to the evidence, the defendant’s driving, up to the moments before the accident, was impeccable. The fact that he was conscious and alert after the crash suggests that he had not fainted immediately before the impact.
He was driven to the conclusion that the defendant had failed to establish, on the balance of probabilities, that the crash was caused by a loss of control due to a medical condition.
A momentary lapse of concentration was just as likely to have been the cause of the crash. While this was sufficient to determine the action, he also considered the breach of duty issues raised.
Until May 2006, the defendant had been a robust active man of 76, leading a fully independent active life and enjoying good health. That was when he was diagnosed with high blood pressure and put on medication. He complained of various side effects, including dizziness, nausea, lightheadedness and headaches. The medication was adjusted a number of times.
Opposing medical evidence was given on behalf of the defendant and the doctor. Two experts said that the defendant should not, in these circumstances, have been issued with a certificate that he was fit to drive, while two others disagreed and commended the GP’s treatment and conclusions.
Mr Justice O’Neill said he preferred the evidence given by and on behalf of Dr Delap himself. He had been the defendant’s GP for a long time and knew him as a fit, robust, active man who walked three to four miles daily. He also knew him to be a careful driver.
High blood pressure was one of the most common complaints suffered by people in the defendant’s age group and did not, in itself, indicate a person should not drive.
When the defendant’s symptoms of dizziness emerged, the doctor considered these were the side effects of the drugs and not caused by anything else, an entirely reasonable conclusion.
“In circumstances where the cause of the symptoms was understood and the elimination of them probable, I do not see a basis for declining to certify the defendant as fit to drive for three years,” Mr Justice O’Neill added.
In relation to the doctor not advising the defendant to stop driving at various periods between May 2006 and the crash in 2008, he said there was nothing in his medical history between early June 2006 and the end of January 2007 that warranted any advice that he should not drive.
At the end of January 2007 he suffered a minor heart attack, after which he received the standard advice not to drive for six weeks. He made a full recovery from the heart attack and, during his frequent visits to the doctor that year, made no complaint that would be relevant to his driving ability.
In December 2007, he experienced a brief episode while a passenger in his son’s car when he lost consciousness for about two minutes. He was taken to hospital, where small vessel disease was detected. The doctors there considered the symptoms could be related to his blood pressure medication.
Mr Justice O’Neill said against this background and where the defendant was still generally in good health and manifestly fully competent, advice to stop driving would have been inappropriate.
There was no negligence or breach of duty on the part of the doctor in relation to any of the advice given by him to the defendant from December 2007 until the accident.
The judge dismissed the defendant’s claim for indemnity or a contribution from the doctor.
The full judgment is on courts.ie
Fergus O’Hagen SC, Richard T Keane SC and Frank Beatty, instructed by V P McMullen, for the plaintiff; Edward Walsh SC and Declan Buckley SC, instructed by AXA Legal Services, for the defendant; Eugene Gleeson SC and Simon Mills, instructed by Hayes Solicitors, Dublin, for the notice party.